R. v. Spencer Date:, 2010 BCPC 458

Citation: R. v. Spencer Date: 20101231 2010 BCPC 0458 File No: 71994-2-C Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRIAN EDMOND SPENCER ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.R. SMITH Counsel for the Crown: J.M. Kaay Counsel for the Defendant: D.B. Johnson Place of Hearing: Kelowna , B.C. Date of Hearing: December 31, 2010 Date of Judgment: December 31, 2010

[ 1 ] THE COURT: Age 57, Brian Spencer is before me today. At the outset I should say that any transcript of what has been said here today would reveal concerns with regards to whether he is fit to stand trial. However, I am satisfied, having read all of the reports now, that he is oriented to person, place and time and any delusions are fixed delusions that could be addressed in the circumstances of a finding of fitness to stand trial. [ 2 ] Mr.

Spencer is a diagnosed paranoid schizophrenic who believes the medications prescribed to him to control his mental health are unhealthy for him and he is reluctant to voluntary take those medications. [ 3 ] THE ACCUSED: Sir, they affect my sex drive, my vision, everything. [ 4 ] MR. JOHNSON: Brian, just let him talk. [ 5 ] THE COURT: This schizophrenia diagnosis has been in place since 1980 -- [ 6 ] THE ACCUSED: It's not true. [ 7 ] THE COURT: -- when he first presented with symptoms of psychosis.

From time to time, he has been certified under the Mental Health Act and then forcibly given antipsychotic medication. [ 8 ] THE ACCUSED: And it's what causes the problems. It's homoiopathic [sic]. [ 9 ] THE COURT: In 1989, Mr.

Spencer was found not criminally responsible for attempted murder and possession of a weapon for a purpose dangerous to the public peace. [ 10 ] THE ACCUSED: They were trying to run me off the road and my dad was threatening me. [ 11 ] THE COURT: Sir, I need you to quit talking or else I am not going to be able to give my decision. [ 12 ] THE ACCUSED: I'd like to tell you my part of the story. [ 13 ] THE COURT: I am going to have to give this in your absence if you cannot listen. [ 14 ] THE ACCUSED: Okay. [ 15 ] THE COURT: I would like you to hear what I say but if you cannot restrain yourself and listen, I am going to have you outside of the courtroom -- [ 16 ] THE ACCUSED: Okay. [ 17 ] THE COURT: -- while I say it, okay? [ 18 ] THE ACCUSED: Okay, sorry.

I apologize, sir. I'm frustrated. I'm -- [ 19 ] THE COURT: Let me just back up here. In 1989, Mr. Spencer, as I said, was found not criminally responsible for attempted murder and possession of a weapon for a purpose dangerous to the public peace. That incident involved his discharging a rifle in an apparent effort to kill his father. [ 20 ] On January 27, 2010, Mr. Spencer assaulted Mr. Joseph Gray, a neighbour, with a weapon, to wit, a screwdriver.

There is some dispute as to whether or not it was a stabbing motion or -- [ 21 ] THE ACCUSED: Just poked him to keep his distance. [ 22 ] THE COURT: -- a poking motion or a scraping motion but what the Crown alleges is that after the fact, Mr. Gray was hospitalized for treatment and he had five marks or cuts on the back of his head that were consistent with having been struck with this screwdriver instrument. [ 23 ] It was alleged that at the time Mr. Spencer was suffering from severe symptoms of psychosis including persecutory false beliefs.

Around that time he believed his medications were poisoned and that individuals in the community were poisoning his drinks. He believed people wanted to steal his artwork and were targeting him. [ 24 ] THE ACCUSED: Where did it all go? [ 25 ] THE COURT: Mr. Spencer has been in custody for much of the time of the past year. On February 24, 2010, Dr. Iskander completed a report opining that Mr. Spencer is fit to stand trial. [ 26 ] THE ACCUSED: Yeah, how come I went back there after a year driving me nuts? [ 27 ] THE COURT: Eventually a guilty plea was entered and on May 12th, 2010, Dr.

Collins prepared a pre-sentencing report. Dr. Collins opined that the certification under the Mental Health Act should not have been allowed to lapse because Mr. Spencer was not willing to voluntarily take the antipsychotic medications. [ 28 ] THE ACCUSED: I'm not taking medication.

[ 29 ] THE COURT: Dr. Collins had been told -- [ 30 ] THE ACCUSED: You can lock me up. I'm not taking it. [ 31 ] THE COURT: -- that 10 days prior to his speaking with Mr. Spencer, that Mr. Spencer had stopped voluntarily taking those medications and was somewhat psychotic at the time of Dr. Collins dealing with him. [ 32 ] On May 31, 2010, the sentencing did not happen. Eventually the guilty plea was withdrawn and the matter was again set for trial, in large part to address whether Mr. Spencer was criminally responsible at the time of the offence by way of mental disorder under s. 16. [ 33 ] On July 8, 2010, Dr.

Meldrum delivered a report regarding whether Mr. Spencer was criminally responsible at the time of the offence. She writes and I quote: There is abundant evidence from collateral sources and from Mr. Spencer's account that he was acutely mentally disordered -- [ 34 ] THE ACCUSED: Was that when I was homeless? [ 35 ] THE COURT: -- at the time of the index offence and as a product of his non compliance with treatment. He had persecutory and grandiose delusions and he believed that he and others -- [ 36 ] THE ACCUSED: I am.

I'm a brilliant artist. [ 37 ] THE COURT: -- specifically children -- [ 38 ] THE ACCUSED: And I'm into parapsychology. I'm grandiose all right. I'm a genius. I'm an artist. I'm Picasso. [ 39 ] THE COURT: I am just going to ask if you could -- it is just too hard for -- [ 40 ] THE ACCUSED: Well, that's all garbage. [ 41 ] THE COURT: It is just hard for him to hear this, so I am just going to ask that he be removed from the courtroom for the time being. [ 42 ] Let me come back and say this quote one more time. Just before getting to that, I do not think for a minute that Mr.

Spencer is being disrespectful to the court. I do not think he can help himself in these circumstances. It is just the nature of it so, no disrespect was taken with his conduct here. But it did make my job easier in my decision making here today, appreciating that he could not keep it together even for a few minutes that we were here. It was asking too much of him to be able to do that. [ 43 ] Anyway, going back to Dr. Meldrum's report, let me just start with the beginning of that quote again of that paragraph: There is abundant evidence from collateral sources and from Mr.

Spencer's account that he was acutely mentally disordered at the time of the index offence and as a product of his non compliance to treatment. He had persecutory and grandiose delusions and he believed that he and others, specifically children, were going to be harmed by the individual that he attacked as well as others. His symptoms were persistent and continued for weeks or months. [ 44 ] Today, that is the 31st of December, 2010, New Year's Eve, Mr. Spencer had his scheduled trial date. At the beginning of the trial, his counsel Mr.

Johnson, requested that the not guilty plea be withdrawn and a guilty plea again be entered. Mr. Johnson stated at that time that Mr. Spencer now accepted that he was criminally responsible at the time of the offence in the context of accepting that his assaultive actions went too far and Mr. Spencer just simply wanted to be sentenced today. [ 45 ] Mr. Kaay for the Crown states that even with an admission of the actus reus of the offence, the Crown believes Mr. Spencer did not have the requisite mens rea for the offence. The Crown maintains that pursuant to s. 16 of the Criminal Code , Mr.

Spencer suffered from a mental disorder at the time of the offence that rendered him incapable of appreciating the nature and quality of the act. [ 46 ] Mr. Johnson quite properly cited various cases dealing with other individuals and whether or not they were assessed as being criminally responsible or not criminally responsible under these mental health provisions. The test is complicated and yet when one takes two steps back, it is a pretty simple test. Poor Mr.

Spencer here might, in a grandiose way think that, "Oh, maybe I went further than I should have to stop this intruder," but all of that is in the context of him still being totally paranoid and delusional regarding what is going on, regarding the reality of the situation. This is just his neighbour that is -- and the accused goes outside of his apartment and in effect attacks this neighbour because -- [ 47 ] MR. KAAY: Sorry, Your Honour, former neighbour.

[ 48 ] THE COURT: Former neighbour, fair enough. But in circumstances where he simply felt persecuted and felt justified in doing what he was doing. It is not enough to simply say that, in hindsight he thinks that he could have stopped this delusion by using a little bit less force. It is just not that close to the line. It is an easy case for me to decide here today. I am having no difficulty in coming to a conclusion. [ 49 ] I think it is Mr. Spencer's mother that is here in the courtroom today. [ 50 ] MR.

JOHNSON: Yes, Your Honour. [ 51 ] THE COURT: I am pleased to see that you are here, ma'am. [ 52 ] It is true that Mr. Spencer has now been in custody for the better part of a year. It is true that we cannot just use the criminal process to address the social mental health needs of individuals. We do use the criminal process to protect the public in circumstances where the mental health issue is consistent with harm to other innocent people in the community. Such is the case here. [ 53 ] Mr. Spencer is dangerous. He thinks that the medications that he is taking are evil.

He thinks that someone is putting poison in the medications. But his refusal to take the antipsychotic medication voluntarily just leads to him time and again to being certified under the Mental Health Act . [ 54 ] He really does not appreciate the nature and the quality of the act involved here, he just does not. No matter how you slice it and dice it and say test this part of it or that part of it, he just does not get it and it is not his fault perhaps, but that is the way it is. [ 55 ] Pursuant to s. 672.34, I find that Mr.

Spencer committed the act of assault with weapon but at the time of the offence he was suffering from mental disorder so as to be exempt from criminal responsibility by virtue of s. 16(1). Pursuant to s. 672.45(1.1), this court chooses not to hold a disposition hearing. I just do not think that I can do that and of course that is the test, whether it would be something that could simply and quickly be done by the court. It is not that simple.

This is something that has been going on since 1980 and people far smarter than me with regards to this mental health situation needs to be looking into this. [ 56 ] Accordingly, I refer the matter to the Review Board that has jurisdiction in the matter. This initial review will be in custody. According to s. 672.47(1), the review must happen as soon as is practicable but not later than 45 days from today. [ 57 ] I order a transcript of my reasons for judgment and that the transcript be expedited. I also order a transcript of everything that was said in the afternoon.

There were some things in the morning of less consequence but in the afternoon because some of the ramblings of Mr. Spencer, of course, will be on that recording and are relevant to why I have come to the decision that I have. Thank you. (REASONS CONCLUDED)